0120110948
03-01-2012
Shelia Forest, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Shelia Forest,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120110948
Hearing No. 461-2009-00093X
Agency No. HS-08-FEMA-00440
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 18, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Supervisory Public Affairs Mitigation Specialist, GS-0303-12, at the Agency's Louisiana Transitional Recovery Office in New Orleans, Louisiana.
On September 5, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (over 40) when:
1. on May 16, 2008, she was not selected for the position of Supervisory Program Specialist (Community Education Outreach); and
2. she was denied training opportunities and projects.
Following a hearing held on July 1, 2010, the AJ issued a bench decision on September 29, 2010, finding no discrimination.1 The AJ found that in regard to claim 1, Complainant established a prima facie case of race, sex and age discrimination. The AJ found that Complainant had shown that she was of the protected classes, and had applied, was qualified for, but was not selected for the position of Supervisory Program Specialist. The AJ nonetheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The AJ noted that after Complainant's former first-level supervisor left, the Agency advertised the Supervisory Program Specialist position she vacated through Vacancy Announcement No. KAT-08-TRO-6033-KAS on April 9, 2008. The AJ noted in the vacancy announcement, the applicant filling the subject position would have these duties: "coordinates Community Education Outreach (CEO) activities with State Mitigation Outreach Coordinator, other FEMA, State and Other Federal Agencies (OFA) staff, VOLAG, local community leaders and Faith Based Organizations." The AJ further noted that ten applicants, including Complainant, were certified as eligible for the subject position.
Complainant's second-level supervisor (S2) reviewed the applications on the certificate list and eliminated five applicants, including Complainant, for consideration because they lacked experience. S2 determined that two named applicants were the top applicants for the subject position. The AJ noted that S2 then met with Complainant's third-level supervisor (S3) and the Deputy Section Chief (C1) for the Hazard Mitigation Grant Program to discuss his recommendations for the top applicants. The AJ noted that S2, S3 and C1 came to a conclusion that the selectee was the best qualified applicant for the subject position, and S3 selected the selectee for the subject position.
The AJ noted that during his testimony, S2 stated "because of the disaster and the emergency and the expeditiousness of needing someone to fill the position . . . we forgo interviews." S2 stated that he knew five applicants, including Complainant, that applied for the subject position. S2 stated "so, knowing [five applicants'] working for FEMA and what their capabilities were, looking at the resumes of the other - - the five that were not working for FEMA, immediately knocked those other five out because they just had no experience whatsoever."
S2 stated that he narrowed down the list of five applicants to two top applicants based on their extensive work experience. S2 stated that he then recommended the selectee for the subject position because he was the "major" spokesperson for the entire Transitional Recovery Office in the state of Louisiana and his interpersonal interactions with the public. S2 stated that the selectee has a "working relationship with a lot of the government officials. I'm talking parish presidents, council members . . . that he has inter-worked with . . . during the past two or three years he was with FEMA. Also, the TV news stations, the radio stations . . . where he had. . . an existing reputation and existing rapport with these individuals . . . that he can get our point across that we needed. . . with Mitigation techniques, with our map - - with our map program coming out. It just far put him over the top . . . of [the other top applicant]."
S2 stated that Complainant was not best qualified for the subject position based on her work experience and outreach experience. Specifically, S2 stated that after working for her for a couple of years, he felt that she had not demonstrated to him that she was qualified for subject position. S2 stated that because Complainant's main job duties "were to handle events and outreach - - outreach materials and outreach outlets . . . that we have across the state. She was never one to really show an initiative to do anything further than that. ''[B]eing with her for. . . the past four years, and in this particular case, knowing . . . her capabilities in the. . . two years that I had known her, she was excellent at what they did. . . with the outreach events and materials, but that was to the extent of what she could do." S2 stated that while Complainant had face-to-face meetings with the stakeholders in the community, she did not work with the regional staff or FEMA Headquarters staff.
Further, S2 stated that during conferences, Complainant "was good at answering some general-type questions about what was available, but when it came to specific questions, like . . . subject matter expert[s] would have to do, like flood insurance professional, or floodplain management professional, she would refer at other tables, or a mapping professional." S2 stated that he attended several conferences "where we had tables as well. The External Affairs group would have a table. [Selectee] would be there answering questions about, in some cases, the Public Assistance office. And he would answer questions on Mitigation Department. He would answer questions on Individual Assistance Department. Being with External Affairs, he had a wide range of knowledge within the different. . . divisions of FEMA. So, I observed him answering some of these questions and. . . very intelligently." Moreover, S2 stated that he did not discriminate against Complainant based on her race, sex and age.
S3 testified that he was the selecting official for the subject position. S3 stated that he asked S2 to review the certificate list and review the applicants' applications by applying "his knowledge. . . who would be best suited for this position based on the skills that were necessary, the abilities, the background, the history and based on the needs of our Agency and our mission within FEMA. It was then discussed with [C1], the second deputy in Mitigation, who would also have some - - some supervisory authority over this position, and myself." S3 stated that S2 recommended the selectee as the best qualified applicant for the subject position and "[C1] and myself both agreed based on everything that I just mentioned, and [Selectee] was selected for the position."
S3 stated that the selectee worked with the Mitigation Department and "he was in our External Affairs Department and [selectee] worked with us and with me directly, and I'm sure, with [S2] and [C1] as well on several occasions." S3 stated that during the relevant period, "we were just moving into this phase with our maps and the issuance of the new DFIRMs and the flood - - the insurance issues and the floodplain management issues that we had down here, and very controversial. And [Selectee] had worked with us directly on some of these very issues, and [Selectee] had helped with us in doing some newspaper interviews." S3 stated that the selectee was involvement in "very technical issues and very directly involved in responding to the media on specific questions and helping us get forth the message very, very specifically on these types of issues that we're speaking out, insurance issues, and he could - - he could directly answer a question and relay that very concisely to the media, whoever it would be, live TV or radio or newspaper."
S3 stated that he did not select Complainant for the subject position because she was not best qualified. S3 stated that Complainant's role in open houses and other events "wasn't technical or specific or direct involvement with the media or anything. [Complainant's] role was general information, in disseminating FEMA publications. She sat behind our table with our brochures on it and kept the brochures out there and made sure that they were stocked and passed them along. She didn't answer technical questions or get involved with the media at any level." Furthermore, S3 stated that Complainant's race, sex and age were not factors in his determination to select selectee for the subject position.
Regarding claim 2, the AJ concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. The AJ noted that S2 testified that he disapproved Complainant's request for COTR training because it was not required for Complainant to perform her job.
S2 testified that "training is just a general training for everyone on our staff. You submit your trainer request to your lead or your supervisor. If your supervisor feels that training is warranted for your job, then, that supervisor - - it's approved at a supervisor level. It normally doesn't get to my level unless it is - - it is denied from that supervisor, then it'll come to me for me to take a look at it to see if it's warranted for that staff member or, you know, or - - I'll just agree with the supervisor that it's not warranted, you know, for the job duties, and that's normally how we handled everyone."
S2 stated that he denied Complainant's request to attend COTR training "because in the duties of CEO, even a CEO supervisor. . . I would not have approved that for the CEO supervisor because COTR training is for contracts and . . . we identified certain people in the office under the HMGP side, Hazard Mitigation Grant Program, that oversees some contracts, and unless you're dealing with government contracts . . . that's when you take COTR training." S2 further stated that no one in CEO, including Complainant, was dealing with government contracts and "so, had no reason to take a COTR training." S2 stated that Complainant's request was not the only one that was denied, and that he had denied several other employees' requests. Moreover, S2 stated that all employees, including Complainant, were trained for the Louisiana Mapping (LaMA) project.
Furthermore, S2 stated "we're here as CORE employees working a disaster. Our work term employment is. . . we're here for a period of two years. If the government asks us to stay further, then, we're here further, but I have a specific mission that has to take place. I hire staff members to handle that particular mission, and if. . . it is for that mission they're working on, then that is what we approve. . . . I can't afford to send an employee out. . . to have them gone a week. . . to learn something that they're going to come back and not use to help me accomplish my mission."
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 1, 2012
__________________
Date
1 The AJ noted that during the hearing, Complainant clarified her third issue that the Agency had accepted for investigation (that she was discriminated against on the basis of race when on May 19, 2008, she was continuously denied promotions while similarly situated employees received automatic job increases to supervisory positions), was not intended to be a separate issue but had been mentioned by the Agency to simply illustrate that the Agency facility where she worked had historically promoted few African-American females over the age of 40.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
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